Tuesday, March 17, 2015
The North Carolina State Bar has filed a complaint alleging misconduct by a staff attorney for the American Civil Liberties Union Capital Punishment Project in a death penalty appeal.
The allegations relate to two affidavits signed by prospective jurors "peremptorily challenged by the prosecution."
In one instance, it is alleged that the affidavit "is inconsistent with the trial transcript" in the case.
In the other, it is alleged that the affidavit "contains an assertion that directly contradicts both [a] typed memorandum of his interview and the trial transcript."
The affidavits were used to support the testimony of Professor Bryan Stevenson as an expert in race relations in connection with a motion for appropriate relief. The accused attorney acknowledged that she misspoke in describing to the court the method by which the affidavits were prepared.
Failure to act with reasonable diligence by failing to follow up on the discrepancies between the interview and trial transcript and conduct prejudicial to the administration of justice "[b]y failing, prior to moving to introduce into evidence the affidavits... to ensure that the information contained in the affidavits that could be verified by referencing the trial transcript comported with the trial transcript."
Note that the allegations do not involve the knowing offering or use of false testimony. Nor is there a charge of misleading the tribunal. Finally, there is no allegation that the attorney presented legally frivolous arguments.
The mere fact that there are inconsistencies between an affidavit and rough notes does not, in my view, remotely establish an ethical violation. Nor does the fact that assertions put in an affidavit do not track the trial record.
In an adversary system, inconsistencies and arguable propositions exist in every case. The duty to diligently represent a client facing the death penalty - to push the envelope - requires the attorney to shed her life's blood for her client.
I find these charges hard to understand.
I am a huge fan of the North Carolina State Bar, which has the very best, most transparent web page of any in the United States.
Tempering that admiration, North Carolina has not had a great reputation for prosecuting prosecutors. Nifong was the ultimate disciplinary outlier and not indicative of an inclination to discipline wayward prosecutors.
I can only hope that this case was not brought for political reasons.
Unless I'm missing something, there is nothing to these charges. (Mike Frisch)